JUDGMENT :

1. The present appeal under Section 374 Cr.P.C. has been filed by the appellant Om Prakash against the judgement and order dated 02.07.1982 passed by III Additional District and Sessions Judge, Meerut in Session Trial No. 4 of 1981 (State of U.P. Vs. Om Prakash) by which he has been convicted and sentenced under Section 376 IPC to undergo six years rigorous imprisonment.

2. The name of the prosecutrix is not being disclosed and mentioned in the present judgment in the light of directions of the Apex Court in various judgments and as per Section 228-A of the Indian Penal Code. She is thus referred to as ‘X’ in the judgment.

3. The prosecution case as per an application dated 04.10.1979 given by Bakreeda to the police of which Dharmapal is the scribe is that on that day at about 12:00 noon his daughter victim 'X' aged about 10 years was mowing grass in the field of Kaliram in the jungle of village Jivana. Om Prakash son of Sukhvirey Kumhar forcibly caught hold of his daughter and took her to the jwar field and committed rape on her on which she started shouting, hearing which Dharmapal Singh son of Ram Swarup Jaat, his son Ayyub and Hashim son of Kutubuddin Darji of his village who were working in the field went to the place of occurrence and saw the accused doing the act. They reached near on which Om Prakash ran away. He was chased but could not be apprehended. He has brought his daughter victim 'X' for lodging of the report. She is bleeding from her private part. His report be lodged and legal action be taken. The said application is Exb: Ka-1 to the records.

4. On the basis of the said application, a First Information Report was lodged on 04.10.1979 at 17:10 hrs as Case Crime No. 215 of 1979, under Section 376 IPC, Police Station Binoli, District Meerut against the accused-appellant Om Prakash son of Sukhvirey. The Chik FIR is Exb: Ka-5 to the records.

5. The Investigating Officer took into possession the clothes of victim 'X' which were blood stained and sealed it. A recovery memo for the same was prepared on 04.10.1979. Yoqoob Ali and Bakreeda are the witnesses of the same. The same is Exb: Ka-7 to the records.

6. Victim 'X' was medically examined on 04.10.1979 at 08:00 pm at Womens Hospital, Meerut by Dr. Rajni Gupta, Medical Officer. She was brought by the police constable. The doctor on physical examination noted as follows:-

“Height 129, weight 52 LBS, teeth 14/14, hairs -pubic, auxiliary - absent, breast - not developed.”

On internal examination, the doctor noted as follows:-

“Hymen freshly torn, erosion present, admitting two fingers with great difficulty, vagina is full of bleeding and clots, vagina also heavily eroded.”

Vaginal smear was sent for pathological examination and x-ray of wrist elbow and knee was advised. The doctor opined that no report can be given about the age at present. The patient was noted to be admitted in general ward. The said medical examination report is Exb: Ka-2 to the records.

A supplementary medical report was prepared on 29.10.1979 by Dr. Rajni Gupta, the Medical Officer, Womens Hospital, Meerut in which it was stated that there was no sperm seen in the vaginal smear. Further, the supplementary report was as follows:-

“age of the girl is round about 10 years. Probably a case of rape according to the examination.”

The said supplementary report is Exb: Ka-3 to the records.

7. The Investigating Officer prepared site plan of the occurrence on 04.10.1979. The same is Exb: Ka-6 to the records.

8. The investigation concluded and a Charge Sheet No. 112 of 1979 dated 04.12.1979 under Section 376 IPC against the accused-appellant was submitted. The same is Exb: Ka-4 to the records.

9. Vide order dated 16.09.1981 passed by III Additional Sessions Judge, Meerut charge under Section 376 IPC was framed against the accused-appellant. He pleaded not guilty and claimed to be tried.

10. The prosecution in order to prove its case produced victim 'X' as PW-1, Bakreeda the first informant and th